Why Have a Gun Trust?

April 22, 2019

Estate Planning, Firearms Law

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There are still many good reasons to have a gun trust.

On July 13, 2016, the ATF changed the Rules that had been in place for decades regarding the transfers of NFA/Title II weapons. The new Rules eliminated the requirement that a chief law enforcement officer (CLEO) sign off on an individual’s ATF application before it could be submitted to the ATF. Many people saw that as a win, as it makes it much easier to buy or sell NFA weapons without a gun trust. But things aren’t always as cut and dried as they may seem.

NFA and gun trusts before July 13, 2016

Since most CLEOs in Florida wouldn’t sign off on the ATF application, individuals who wished to transfer an NFA weapon created gun trusts to legally bypass that requirement. While using a gun trust expedited the transfer of NFA weapons, it didn’t allow prohibited persons to access such weapons as NICS instant background checks were still done before the weapon left the dealer’s store. Also, the trustee was legally responsible for making sure all persons associated with the trust (grantor, trustees, beneficiaries) were not prohibited by federal or state laws from possessing firearms.

NFA and gun trusts now

Today, an individual can transfer an NFA weapon by completing the ATF application, submitting a copy by mail to her CLEO (although Florida has a law prohibiting government officials from creating lists of any sort pertaining to gun ownership), and then submitting the ATF application, fingerprint cards, and a passport photo to the ATF.

A trustee of a gun trust must complete the ATF application, but will also need to have every “Responsible Person” associated with the trust complete a new ATF form. The trustee must submit a copy of all the ATF forms by mail to her CLEO, and then submit all that ATF paperwork PLUS fingerprint cards and passport photos for every responsible person to the ATF.

Whoa! That’s potentially a lot of paperwork, time, and money.

Why a gun trust is still valuable

So, you’re probably thinking, “Hell, it’ll be easier to just buy a suppressor as an individual. Forget the trust.” Yes, in some cases, it may be appropriate. If you can say “yes” toevery one of the following, you may want to buy, sell, or manufacture as an individual:

I would never allow my spouse, a friend or other family member to use my suppressor or other NFA weapon without me being right next to them (illegal possession = felony).

No one except me has access to the gun safe where I store the NFA weapons I own as an individual – that includes my spouse and adult children (illegal constructive possession = felony).

My spouse or significant live-in other will never need to use my suppressed weapon for self-defense when I’m not home (illegal possession = felony).

I have a current, valid Durable Power of Attorney, and all of my named Agents can recognize which of my weapons are highly-regulated NFA weapons and which ones aren’t, and will know what to do with them if I become incapacitated (illegal possession= felony, contraband weapons confiscated by ATF).

Or, if I don’t have a current, valid Durable Power of Attorney, I understand that if I become incapacitated, someone will have to go to court ($$) to be named my guardian so my NFA weapons can be legally transferred or sold.

I have a current, valid Will, and all of my named Personal Representatives can recognize which of my weapons are highly-regulated NFA weapons and which ones aren’t, and will know how to legally transfer them when I die (illegal possession = felony, contraband weapons confiscated by ATF).

Or, if I don’t have a current, valid Will, I understand that a judge will name a Personal Representative to handle my estate, in accordance with Florida law: spouse, then children, then parents, then siblings, etc. All of these people can recognize which of my weapons are highly-regulated NFA weapons and which ones aren’t, and will know how to legally transfer them when I die (illegal possession = felony, contraband weapons confiscated by ATF).

I am not a veteran, so there’s no chance that the VA could someday unilaterally decide that I’m not capable of handling my finances and assign me VA Fiduciary (automatic addition to NICS database as a mental defective = prohibited person = illegal possession = felony; contraband weapons confiscated by ATF).

I will not use medical marijuana as long as it’s federally regulated under the Controlled Substances Act (illegal drug use = prohibited person = illegal possession = felony; contraband weapons confiscated by ATF).

I understand that any NFA weapons I own as an individual will be subject to probate ($$), and will be distributed under the terms of my valid Will, or, if I have no valid Will, per Florida law.

I have no concerns about privacy when I die. I understand that my Will – which may designate who will receive certain weapons – shall become a public court record and will be available to virtually anyone.

I have complete faith that the Supreme Court and politicians will continue to defend my constitutional right to own guns.

Okay, I threw that last one in there for fun – none of us believe that!

But if you can’t say “yes” to the other items on the list, consider speaking with a gun trust attorney. And if you currently have just a basic $100 NFA gun trust, consider upgrading it as it may not offer all the protection you need.

Gun trusts can be valuable estate planning tools, and there are ways a knowledgeable trust attorney can draft gun trusts to maximize sharing, privacy, and control while minimizing the onerous requirements of the new Rules. Gun trusts can include all your weapons or only your NFA weapons. They may help keep your guns in your family’s hands when things go terribly wrong for you (incapacity, legal problems, death, etc.). They can be revocable or irrevocable, depending on your situation. They can end at your death or continue for generations.